Washington Supreme Court Holds Nonprofit Zoo Operator Not a Public Agency for Public Records Act Compliance

The City of Seattle owns, and for many years operated, the Woodland Park Zoo. Acting under statutory authorization, the City contracted with the Woodland Park Zoo Society, a privately formed not-for-profit corporation to manage and operate the Zoo. Following the lead of earlier decisions of the Washington Court of Appeals and those of other states’ courts, the Washington Supreme Court confirmed the application of a four-part balancing test to determine whether an entity is the "functional equivalent" of an agency and therefore subject to the state’s Sunshine Laws. Fortgang v. Woodland Park Zoo, No. 92846-1 (Jan. 12, 2017). The four factors (known in Washington as the "Telford test") are:

  1. whether the entity performs a government function;
  2. the extent to which the government funds the entity’s activities;
  3. the extent of government involvement in the entity’s activities; and
  4. whether the entity was created by the government.

The Zoo Society operates the Woodland Park Zoo under an operations and management contract with the City of Seattle. The case arose from the Zoo Society’s refusal to provide documents to a requester seeking information about the Zoo’s former elephant exhibit. The Zoo Society denied that it was an agency subject to the state’s Public Records Act (PRA), and the requester brought suit. Of the four Telford factors, the Court found only the second to be inconclusive. Under the Telford analysis, the Court held that the Zoo Society is not the functional equivalent of a government agency.

Applying the first factor, the Court held that operation of a zoo is not an inherently governmental function. On the second factor, the Court observed that "the type of funding matters and, specifically, that an ordinary fee-for-services model typically weighs against functional equivalency....But Washington cases also suggest that the percentage of funds attributable to public sources is the foremost consideration." The City provides approximately 30 percent of the Zoo Society’s annual funding. The Court found the second factor to be inconclusive.

On the third factor, the Court applied a "day-to-day" operations analysis to find that the City did not exercise operational control over the Zoo Society. The Zoo Society’s board acted in total independence from the City. In prior cases, a local government’s retention of substantial control through public official seats on the respective boards resulted in findings of significant government involvement under the third Telford factor.

With respect to the fourth factor, the Zoo Society was incorporated solely by private individuals, so the Court would not attribute its "origin" to special legislation or other government action. The Court explained: "The Telford test is designed to prevent the government from operating in secrecy via a private surrogate. It is not designed to sweep within PRA coverage every private organization that contracts with government. This remains true even if the contracts in question are governed or authorized by statute." Therefore, neither the City nor any other public agency subject to the PRA "created" the Zoo Society under the fourth factor.

Applying all four factors "on balance," and with only one factor inconclusive, the Court held that the Zoo Society is not the functional equivalent of a government agency under the Telford test. Accordingly, it is not an "agency" subject to PRA requirements.

PRA Initial Response Requires Reasonable Estimate Of When Records may be Provided

A Washington court of appeals ruled that the City of Lynnwood violated the Washington Public Records Act (“PRA”) when it failed to provide “any reasonable estimate when records would be provided” in its initial response to a broad records request. Hikel v. City of Lynnwood, No. 74536-1-I (Dec. 27, 2016).

The appellate court affirmed the trial court’s rejection of other PRA claims by a former City Councilmember, represented in the case by the City’s former mayor. The trial court had earlier rejected all of the claims.

But the appellate court found that, despite the City’s efforts to comply with the PRA, the initial response to the request did not satisfy RCW 42.56.520. That provision requires a response within five business days of receipt of the request. If the agency needs additional time, it must acknowledge the request and include “a reasonable estimate of the time the agency...will require to respond.” RCW 42.56.520(3). A reasonable estimate of the time needed to provide a first installment of records has been found compliant. Opinion at p. 10 (citing Hobbs v. Wash. State Auditor’s Office, 183 Wn. App. 925, 943, 335 P.3d 1004 (2014)).

The City’s initial response had asked for clarification due to the large volume of responsive records and advised that it would provide an estimate after it received clarification from the requester. The City then provided its estimate 11 days later. The appellate court held that the City’s initial response was a procedural violation of the PRA. The City was not liable for penalties, but it was subject to an attorney fee claim as to that single violation.

Public records officers will use this case as a further check to be added to the already-long checklist to assure PRA compliance.

Attempted Murder For Hire And Public Records

In 2010, Michael Mockovak was found guilty of soliciting and attempting to murder his business partner, among other charges. While incarcerated, Mockovak filed suit under the Washington Public Records Act, chapter 42.56 RCW (“PRA”), against King County and the King County Prosecuting Attorney’s Office, seeking all documents referring to the immigration status of an informant, Kultin, who helped secure Mockovak’s conviction. Although records were disclosed, many were heavily redacted to protect attorney work product. The agencies also withheld Kultin’s National Crime Information Center (“NCIC”) Report, arguing they were barred from disclosing it by federal statute. In affirming the trial court’s decision in favor of the agencies, the Washington Court of Appeals addressed a number of discovery and PRA issues. Mockovak v. King County, No. 74459-3-I (Dec. 19, 2016).  

The PRA Does Not Override Federal Touhy Regulations.  Mockovak’s convictions arose out of a joint federal-state investigation conducted by the Puget Sound Safe Streets Violent Crimes Task Force. The task force included both federal and state law enforcement officers specially appointed to federal positions. Mockovak argued that certain task force documents became subject to the PRA when task force member Carver (also a Seattle Police Department detective) “used” the documents, citing the Washington Supreme Court decision in Concerned Ratepayers Association v. Public Utility District No. 1 of Clark County, 138 Wn.2d 950, 983 P.2d 635 (1999). While the appellate court agreed the task force documents likely qualified as public records under the PRA, that alone did not require disclosure. Because the documents were created by and belonged to a federal agency, the PRA did not permit a Washington state agency to release them in contravention of the federal agency’s regulations. Federal agencies are statutorily authorized to adopt regulations – known as Touhy regulations – governing agency administration, including use and disclosure of records. See 5 U.S.C. § 301.
 
Public Records Disputes Are Not a Forum to Raise Brady Claims.  Mockovak also argued that he was constitutionally entitled to the requested records under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), which requires the prosecution to turn over material exculpatory evidence to the defense. The Court rejected this argument, citing numerous federal decisions holding that Brady claims are proper only in connection with a criminal proceeding, not a suit for the disclosure of public records. The Court noted that “[t]his is not to say that the PRA trumps or otherwise limits what Brady allows. It simply means that the issue must be litigated in the proper forum.”
 
Records Were Protected Work Product.  The Court also rejected a number of work product arguments raised by Mockovak. First, King County and the Prosecuting Attorney’s Office’s communications with the U.S. Attorney’s Office were protected as work product under the “common interest” rule, even if there were some “tensions” between the offices regarding the details of Mockovak’s prosecution. Such tensions did not preclude the agencies from sharing common investigative and prosecutorial interests. Further, disclosure of certain documents to “friendly witness” Kultin did not result in a waiver, as he participated in both the prosecution and investigation and shared a common interest in having Mockovak prosecuted.  The Court also held that documents prepared by the U.S. Attorney’s Office were “prepared in anticipation of litigation” – to prosecute Mockovak – even though the U.S. Attorney ultimately agreed that the State should handle the prosecution.  The documents constituted “opinion work product” that was “absolutely immune from disclosure” and, even if regular work product, Mockovak did not demonstrate a substantial need for the documents.
 
Partial Disclosure of Information Contained in NCIC Report Did Not Waive Federal Exemption. Mockovak’s final argument was that the NCIC Report was improperly withheld because the agencies waived any protection of the report when Carver summarized information he learned from the report in his declaration testimony. The PRA allows agencies to not disclose records when “[an]other statute . . . exempts or prohibits disclosure.” RCW 42.56.070(1). Here, the agencies relied on 28 U.S.C. § 534, governing exchange of criminal identification records between agencies. In rejecting Mockovak’s waiver argument, the Court observed that “a federal statutory bar on disclosure cannot be waived.” Moreover, general discussions of topics or partial disclosures of information contained in a document do not waive an otherwise valid exemption over the document itself. Carver’s references to arrest and criminal history information contained in the NCIC Report were “limited, general, and cursory” and did not waive the protections of the PRA’s “other statute” exemption and 28 U.S.C. § 534.
 

Public Records for "Commercial Purposes"? Washington Court of Appeals Addresses Another Dispute - Rejects Union's Constitutional Privacy Argument

Earlier this year, Division II of the Washington Court of Appeals determined that the Freedom Foundation’s public records request for names and contact information of home healthcare workers was not a request for “commercial purposes.” SEIU Healthcare 775NW v. Dep’t of Soc. & Health Servs., 193 Wn. App. 377, 377 P.3d 214, review denied, 186 Wn.2d 1016 (2016). This week, the Court addressed a similar dispute over the Foundation’s request for names of childcare providers in Washington’s “Family, Friends and Neighbors” program and their “state contact” information. SEIU Local 925 v. Freedom Found., No. 48522-2-II (Dec. 20, 2016).

Washington’s Public Records Act, chapter 42.56 RCW (“PRA”), prohibits disclosure of “lists of individuals requested for commercial purposes.” RCW 42.56.070(9). The Foundation claimed that its purpose was to notify childcare providers of their right to refrain from union membership and fee payments. SEIU countered that the Foundation’s fundraising materials specifically mention its use of the lists of provider names. Largely reiterating its prior holdings, the Court held that the Foundation’s purpose was not a commercial one because the Foundation does not intend to general revenue or financial benefit from the direct use of the information. Financial benefit garnered from mentioning the provider information to publicize the Foundation’s work was too attenuated to be a direct use.
 
Also in line with its prior decision, the Court rejected SEIU’s “linkage argument” – that information can become non-disclosable if it could somehow lead to other private information being tracked down from other sources. While property addresses might be the same as the locations where children live or receive childcare, the Foundation’s request did not seek the names and addresses of any specific children. The Court would not look to what information could be discovered beyond the four corners of the records requested to determine if an exemption applied.
 
The Court next considered SEIU’s argument that the privacy protections in article I, section 7 of the Washington constitution prohibited the release of the requested information. The Court rejected this claim, finding that (1) SEIU did not meet its burden of proving that a person’s name and contact information were historically treated as “private affairs” under the constitution; (2) representations by a state agency that information would be kept confidential did not give constitutional protection to such information; (3) the situation was not analogous to the home privacy issues implicated by warrantless searches of a home; and (4) the PRA provided “valid authority of law” to obtain information provided to participate in a public program. The trial court therefore did not err by denying a permanent injunction on the basis of SEIU’s constitutional and statutory arguments.
 

Bikini-Barista Video Disclosure Deal Would Cost Everett $45K

By Scott North from Herald Net

EVERETT — It looks as if an Olympia man could get a check for $45,000 from the city of Everett, along with copies of police surveillance videos of bikini baristas behaving badly.

The Everett City Council on Wednesday is scheduled to consider a settlement that city attorneys negotiated with prolific public records requester Arthur West.

The deal would bring an end to litigation over West’s 2014 demand for the barista videos. It also would memorialize his offer to not publish any of them on the Internet unless they contain images of public officials engaged in misconduct.

"I’m very encouraged that the city and I could come to a reasonable arrangement that would guarantee that the public interest would be served while not publishing all of the videos online," West said. "It was never my intention to publish the videos of the baristas online."

The record also is clear that West has for months quietly been seeking a cash payout in the case. He retained an attorney last summer who repeatedly demanded $150,000 or more to make the controversy go away.

West sought surveillance videos that Everett police and the FBI gathered as they investigated public corruption and prostitution at sexpresso stands in Snohomish County.

The city agreed the 5.3 terabytes of video were subject to disclosure under the state’s open records law. It offered West viewing access. However, officials resisted his demand for copies. They said surveillance videos showing baristas stripping and engaging in sexual conduct with each other and customers amounted to "nonconsensual pornography." Releasing the videos would violate privacy rights, particularly if they wound up online, the city argued.

Superior Court Judge George Appel in December ruled the city’s "inspect-but-don’t copy" position violated the Public Records Act.

West said the litigation was appropriate because the city’s had created what he called a "peek-a-boo" exemption to disclosure. City officials may have taken that stance in good faith, but they still deprived him legal access to records that contain evidence of official misconduct, he said last week.

Investigators have never maintained otherwise.

Darrell O’Neill, a former Snohomish County sheriff’s sergeant, was sentenced to a year in jail last week for the felony of conspiring to engage in laundering money connected to the sexpresso business. He only began admitting the scope of his illegal conduct when confronted by video evidence showing him in uniform in intimate embrace with coffee hut workers, records show.

The investigation found the stands were multimillion-dollar operations that mixed selling coffee drinks with customers paying baristas for sexually explicit conduct, primarily flashing private parts but also exchanging sex for money.

The state Public Records Act allows a judge to impose penalties for each day a government illegally withholds records. Assistant city attorney Ramsey Ramerman said settling with West now makes sense given the court’s ruling.

"The benefits to the city are quickly diminishing if we try to litigate over the settlement amount," Ramerman said.

That doesn’t mean the settlement was reached without pushing back and forth.

West, who is not an attorney, represented himself in the courtroom to argue the public records aspects of the case. He also retained Olympia attorney Jon Cushman to press the city for a cash award, according to emails The Daily Herald obtained under a public records request.

"This case should settle," Cushman wrote Ramerman in August. "A media feeding frenzy is about to occur."

The city’s response: It could handle any frenzy that arose and the legal questions were real.

Cushman demanded $175,000 and complained when his message went unanswered. He renewed the $150,000 demand in December after the court ruled against Everett.

Ramerman told West’s attorney that amount was "a conversation killer," and the city instead asked the judge to revisit the ruling.

Appel stood firm, however, and negotiations commenced.

West in August told The Daily Herald he wasn’t trying to force a cash award from the city and that resolving the public access questions raised by the case were his primary attraction.

"The public interest is served by having rewards for people who have the time and the skill to spend years if necessary in court to uphold the people’s right to know," he said last week.

Copyright (c) Herald Net

No Right of Access to Security Video Footage Revealing Security Capacity for Surveillance System

Republished with permission from the International Municipal Lawyers Association (IMLA) with Washington Law commentary from Lee Marchisio, Foster Pepper

 

Gilleran v. Township of Bloomfield, No. a-15-15 (Sup. Ct. N.J. Nov. 22, 2016)

Denial of access to town's video security tape footage permissible under [New Jersey's] Open Public Records Act ("OPRA") security exemption because footage contained critical information about operating system and vulnerabilities; however, court noted there may be a common law cause of action for releasing portions of footage.

Seeking to determine whether certain people had entered the Township's municipal building, Plaintiff Patricia Gilleran requested five days' worth of footage from one of Bloomfield's stationary security cameras. A clerk for the Township asked that the request be narrowed to a shorter time period, noting that five days of security camera footage was quite voluminous. Accordingly, Gilleran reduced her request to one day of footage and was later informed that her request had been denied under OPRA's exemption for security information.

Gilleran commenced action against the Township by filing a claim with its Law Division to access the requested footage under OPRA and a common law right-of-access claim, noting that the camera was in plain sight and surveying a public area. In her complaint, Gilleran requested that the court order the footage either be released or redacted pursuant to OPRA's security exemptions.

The Township, despite having never viewed the entirety of the recordings, contended that the footage fell within OPRA's security exception because it would allow a viewer to ascertain the actual area being surveyed by the camera. Since the cameras were strategically placed and contained within smoked glass, it was not immediately obvious to the general public as to what the cameras were surveying, despite their location in a publically viewable area. As a result, Bloomfield contended, allowing members of the public to obtain this security camera footage would defeat the original purpose of the security camera. Further, the area potentially surveyed was used not only by public employees, but also by members of the police department, confidential informants and victims of domestic violence whose identities needed to remain anonymous.

Gilleran responded that none of the OPRA security exceptions warranted a blanket prohibition, particularly given the Act's purpose (to grant public access to public records), and urged the court to require Bloomfield to examine the footage in order to determine whether portions of the video contained a security risk. Further, she reiterated, the cameras were publically viewable and had captured nothing that an individual physically present at the same location could also see. She also argued that since the Town had not actually viewed the tapes in their entirety, they had not effectively demonstrated that there was a security risk that warranted the OPRA exemption.

The trial court found Bloomfield in violation of OPRA. The Township appealed and the appellate court upheld the decision of the trial court.

The New Jersey Supreme Court reversed the decision of the appellate court, concluding that OPRA's exception, while not a blanket exception, nonetheless exempts local governments from releasing of video footage that reveal security capacity for security surveillance systems protecting public buildings. It also found the compelled release of security footage to be at odds with the legislative intent of New Jersey's OPRA statute. The court noted, however, that despite OPRA's security exceptions, there still may be a common law right-to-access claim that balances the interests of both parties and allows for citizens to obtain certain sections of surveillance footage. As a result, the case was remanded to be decided under the unresolved common law claim.

Patricia Gilleran v. Township of Bloomfield (A-15-15) (076114)

Washington Law Commentary

The Washington State Public Records Act provides a similar exemption for surveillance systems protecting public buildings: "As Division One of our court has held, 'Intelligence information provided by video surveillance systems ... falls squarely within the core definitions of 'law enforcement,' thereby exempting surveillance video recordings from disclosure under RCW 42.56.240(1).'" Gronquist v. State, 177 Wn. App. 389, 400–01, 313 P.3d 416 (2013) (quoting Fischer v. Wash. State Dep’t of Corr., 160 Wn. App. 722, 727–28, 254 P.3d 824 (2011), review denied, 172 Wn.2d 1001, 257 P.3d 666 (2011)). This portion of the law enforcement exemption "only applies to the [investigative, law enforcement, and penology] agencies enumerated in the statute." Does v. King Cty., 192 Wn. App. 10, 27–28, 366 P.3d 936 (2015). The agency must demonstrate that nondisclosure "is essential to effective law enforcement or for the protection of any person’s right to privacy." RCW 42.56.240(1); Sargent v. Seattle Police Dep’t, 179 Wn.2d 376, 395, 314 P.3d 1093 (2013). Washington courts have not extensively reviewed the separate "security" exemption statute, RCW 42.56.420. However, any agency or third party seeking nondisclosure under the security exemption statute’s terrorism provision must show that public disclosure "would have a substantial likelihood of threatening public safety." RCW 42.56.420(1); Does, 192 Wn. App. at 29.

Sunshine Committee 2016 Recommendations to Washington Legislature

The Washington State Sunshine Committee makes recommendations to the Washington Legislature to repeal or amend exemptions to disclosure under the state’s Public Records Act, Chapter 42.56 RCW. Earlier this week, the Committee released its 2016 Annual Report. The report summarizes committee discussions regarding the exemptions reviewed in 2016 and attaches five recommended amendments (at Report Exhibits A-E) to the Public Records Act and related statutes.

  • Exhibit A proposes to redefine the scope of certain public employee information exempt from disclosure. The proposal would also provide that the exemption for certain employer investigation records ends once the agency notifies the complaining employee of the investigation’s outcome. RCW 42.56.250.
  • Exhibit B would allow individuals associated with certain information in records to expressly consent to the information’s disclosure. RCW 42.56.230.
  • Exhibit C would limit an express exemption for certain proprietary data and trade secrets to only that information submitted by vendors to the Washington State Department of Social and Health Services regarding state purchased health care. RCW 42.56.270(11). 
  • Exhibit D proposes to extend the current exemption for public contracting bid proposals submitted to the state to bid proposals submitted to local agencies. Bid proposals would be exempt from disclosure until the state or local agency announces the successful bidder or rejects all proposals. Current RCW 36.26.030 would be repealed and replaced with a new provision in Chapter 42.56 RCW.
  • Exhibit E would impose procedural requirements to protect trade secret information upon both agencies and the businesses that confidentially disclose trade secret information to them. It would also subject businesses that contract with agencies to an adverse award of attorney fees if they seek to protect trade secret information and lose in court. The proposal does not provide a reciprocal attorney fee provision against those seeking the information if the business entity prevails in court. RCW 42.56.270.

Pennsylvania Supreme Court: Public School Employees Have Constitutional Right to Privacy in Their Home Addresses

A public employee’s right to privacy was analyzed in some detail by the Pennsylvania Supreme Court in a decision entered October 18, 2016. Pa. State Educ. Ass’n v. Commonwealth. See 41 IER Cases 1310 (Pa. 2016). The Court considered the history of that state’s Right to Know Law (RTKL) as well as federal and state constitutional protections. The court’s deep dig into the privacy issues extends back to 1890 and a regularly cited law review article, Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). There, Warren and Brandeis stated that all citizens have the “right to immunity of the person,” the “right to be let alone,” and the “right to one’s personality.” Sometimes referred to as the “right of informational privacy,” the Pennsylvania Supreme Court applied such a right to the home addresses of public school employees. Although the Court struggled with the argument that the RTKL changed the analysis, a majority of the Court determined that the constitutional right to privacy must be considered in any balancing of claims for public records disclosure under the RTKL. As to employee’s home addresses, the Court found no basis to overcome the constitutionally protected privacy interest.

A concurring opinion was critical of the Court’s application of the rules of statutory construction. The concurring opinion would hold that the matter was controlled by the constitutional right to privacy and that the RTKL had no application. In discussing United States Supreme Court authority, the concurrence stated that “it may well be true that home addresses are publicly available through easily accessible sources. . . . However, '[a]n individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.’” Citing Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989), and Dep’t of Defense v. Federal Labor Relations Auth., 510 U.S. 487 (1994).

In 1987, the Washington Legislature amended the state’s Public Records Act (PRA) to define an invasion of privacy:

A person's “right to privacy,” “right of privacy,” “privacy,” or “personal privacy,” as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. The provisions of [the PRA] dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public's right to inspect, examine, or copy public records.

RCW 42.56.050. Personal residential addresses of public employees (and their dependents) are considered private and not subject to disclosure under RCW 42.56.250(3). See Public Records Act for Washington Cities, Counties, and Special Purpose Districts (MRSC, 2016), available at http://mrsc.org/Home/Publications.aspx.

Washington Court Addresses Confidentiality of Child Support Records

Kevin Anderson, a noncustodial parent, sought child support records from the Department of Social and Health Services, Division of Child Support (DCS). Dissatisfied with DCS’s response partially denying his request, he sued under the Washington Public Records Act, chapter 42.56 RCW (PRA). On November 15, 2016, a Washington Court of Appeals rejected Anderson’s claims.

Child support records may be subject to public disclosure, but foremost the records are “private and confidential.” RCW 26.23.120(1). Records may only be disclosed “under appropriate circumstances” as authorized in the statute. RCW 26.23.120(2). Here, DCS provided records and information about Anderson’s own child support case, but redacted information about the mother and child. The Court held that DCS’s disclosures to Anderson, with redactions, were appropriate. The law limiting disclosure of child support records was an “other statute” under the PRA and therefore a proper basis for the redactions. The Court also referred to the Legislature’s direction that juvenile justice records “shall be confidential and shall be released only” under specific statutory authority. See RCW 13.50.100(2).

The Court further held that emails between the DCS support enforcement officer and the prosecuting attorney’s office were protected as attorney-client communications, and were properly withheld from disclosure. The case is Anderson v. Department of Social and Health Services.

Private Account But Public Records: Public Records Located in City Council Member's Private Email Account Are Not Protected From Disclosure By the State and Federal Constitutions

By: Philip Paine and Steve DiJulio

The Washington State Court of Appeals recently held that the First and Fourth Amendments of the United States Constitution and Article I, Section 7 of the Washington State Constitution, do not afford an individual privacy interest in public records contained in an elected official’s private email account.

Arthur West submitted a public records request to the City of Puyallup for communications received or posted through City Council Member Steve Vermillion’s private website and email account that related to matters of City governance. Vermillion had used the account during his election campaign and occasionally received emails from constituents and the City, which he forwarded to his City account when an official response was warranted. In response to the request, Vermillion and the City declined to provide records located in Vermillion’s private email account. West sued to compel disclosure under the Public Records Act. West v. Vermillion, No. 48601-6-II (Wash Ct. App., Nov. 8, 2016. The Superior Court ruled in favor of West and ordered Vermillion, under penalty of perjury, to produce records within the scope of the request.

On appeal, the Washington Court of Appeals held that the Washington State Supreme Court’s decision in Nissen v. Pierce County, 183 Wn.2d 863 (2015) controlled. Consequently, the Court of Appeals held that neither the Fourth Amendment to the United States Constitution nor Article I, Section 7 of the Washington State Constitution afforded Vermillion a constitutionally protected privacy interest in public records contained in his personal email account. Moreover, the court explained that constitutionally protected associational rights do not protect public records from disclosure. In the alternative, the court held that even if First Amendment constitutional protections could allow Vermillion to not disclose public records in his personal email account, it was not possible for the Court to determine if any emails were subject to such protections; or, even if they were public records.

The Court also clarified that no distinction exists between an elected executive official and an elected legislative official with regard to public records held in a private email account. Vermillion and the City had argued that the result should be different from Nissen because unlike an executive official (County Prosecutor in Nissen), a legislative official has no legal authority to act on behalf of the City through email or to take unilateral action on behalf of the City. However, the court dismissed this distinction, explaining that whether a record is subject to disclosure “hinges on if the record was prepared, owned, used or retained within the scope of employment, not if the record was prepared, owned, used or retained within the scope of employment by the executive branch of government.” Vermillion Opinion at 13 (internal quotations omitted).

The court remanded the case for the Superior Court to amend its order in light of the procedures set forth in Nissen. Click here to read our analysis of Nissen.